Ontario Superior Court of Justice

Court File No.: CV-24-00726512-00ES
Date: 2025-04-02

Parties

Applicants:
Richard Alexander Fisher, in his capacity as Deputy for Marija Jurate Danilunas
Sally Louise Kinsey, in her capacity as Deputy for Marija Jurate Danilunas

Respondents:
Marija Jurate Danilunas
Edward Danilunas
Office of the Public Guardian and Trustee

Before: Frederick L. Myers

Counsel:
Arieh Bloom and James Dilworth, counsel for the Applicants
Edward Danilunas, for himself

Heard: 2025-03-25

Endorsement

Introduction

[1] The applicants ask the court to enforce an order made by a court in England appointing them as Joint and Several Deputies for the Property and Affairs of Marija Jurate Danilunas. Alternatively, they ask to be appointed as guardians of Ms. Danilunas under the Substitute Decisions Act, 1992, SO 1992, c 30.

[2] The order that I am asked to enforce was granted by District Judge Grosse of the Court of Protection in London, England, entered on September 14, 2023.

[3] As the order emanates from a court in England, a copy of the order bearing the seal of the court and without further proof of authenticity is admissible under s. 38 of the Evidence Act, RSO 1990, c E.23.

[4] The recitals to the English court’s order set out some of the court’s findings:

UPON the court being satisfied that Marija Jurate Danilunas lacks capacity to make various decisions for herself in relation to a matter or matters concerning her property and affairs, and that the purpose for which this order is needed cannot be as effectively achieved in a way that is less restrictive of her rights and freedom of action.

AND UPON the court being satisfied that Marija Jurate Danilunas's interests and position can be properly secured without being joined to these proceedings and without making any further direction concerning Marija Jurate Danilunas's participation in these proceedings.

[5] The English court’s order required that Ms. Danilunas be served with the court material that formed the basis of the order and the order itself within 14 days after the order was granted. She was not served in advance as would have been required had the proceeding been commenced here initially.

[6] I am told by an affidavit of service that Ms. Danilunas was served with this application in England.

[7] In this proceeding, the applicants seek to access Ms. Danilunas’ funds in banks in Ontario. They want to use Ms. Danilunas’ money to help pay for her care in England. The applicants ask for recognition of the English court order to allow them to represent Ms. Danilunas to her banks like a guardian for property under the Substitute Decisions Act, 1992.

Evidence of Incapacity

[8] The following is the evidence provided by one of the Deputies about the application and about Ms. Danilunas’ health:

5. In the United Kingdom, a deputy is a person the Court of Protection appoints to make decisions for an incapable individual when they have lost capacity to make their own decisions.

6. The Deputy Order grants Richard and I jointly and severally the authority to make decisions on behalf of Marija as she is unable to make them for herself in relation to her property and affairs.

7. It further "confers general authority on the deputies to take possession or control of the property and affairs of Marija Jurate Danilunas and to exercise the same powers of management and investment, as she has as beneficial owner, subject to the terms and conditions set out in this order."

Marija Danilunas' Condition and Care needed to be provided

8. Marija suffers from Alzheimer's Dementia together with a delusional disorder and was found to be incapable by the Court of Protection on September 12, 2023.

9. Due to her diagnosis, Marija is unable to manage her affairs, and since September 14, 2023, has had both Richard and myself act as her deputies pursuant to the Deputy Order.

10. Marija currently has carers attending to her four times a day, but there is an expectation that within the next year or two that Marija's illness will progress to the point that she will need live-in carers to assist her with the day-to-day management of her health and financial affairs going forwards.

11. Marija's illness is an organic progressive dementing illness and therefore there is an expectation that her condition will deteriorate going forward.

12. Due to the nature of her illness, it may be the case that additional carers will be necessary to provide her with adequate care.

[9] I have not been provided with reasons for the English court’s decision to understand the basis for the findings that the court made or the law that it applied.

[10] It is quite evident to me that the conclusory statements by the Deputies, who are lawyers, that Ms. Danilunas may have “lost capacity,” and that she was “found to be incapable” and is “unable to manage her affairs” would not be sufficient evidence to allow for appointment of a guardian for property under Ontario law.

[11] There is no medical evidence offered. There is no basis for this court to make a finding that the autonomy and integrity of Ms. Danilunas is respected under the applicable foreign law as it would be here.

Statutory and Common Law Framework

[12] The Substitute Decisions Act, 1992 provides for recognition of foreign orders if the foreign jurisdiction is listed in a regulation. There are no listed jurisdictions as yet despite calls for the government to consider the issue. Accordingly, the Public Guardian and Trustee objected to the applicants’ initial formulation of this proceeding as enforcement under the statute.

[13] Absent evidence, I am not prepared to criticize the government for failing to prescribe any foreign jurisdiction by regulation so as to entitle capacity orders from those places to automatic recognition. Perhaps the government has yet to be convinced that there are other jurisdictions with procedural and substantive laws sufficiently similar to ours to justify that type of summary recognition.

[14] Perhaps the government has decided that in this particular type of proceeding foreign representatives for incapacitated people should be required to establish on evidence that a declaration of incapacity meets our understanding of that status before guardianship rights are accorded or recognized here.

[15] However, the applicants submit that they are entitled to enforcement of their appointment order at common law rather than under the statutory enforcement scheme.

Enforcement of Foreign Capacity Orders

[16] Unfortunately, the case law on enforcement of foreign capacity orders is very sparse. In addition, this is not the same as enforcement of foreign money judgments. A capacity order is an order in rem. It affects the incapacitated person’s status in all things. It is not just a decision for payment of money in personam (as between the litigants alone).

[17] The legal issues and applicable tests for enforcement of orders in rem is not necessarily the same as for enforcement of orders in personam.

[18] Although counsel for the applicants did an admirable job locating the few cases that deal with foreign capacity decisions, I am not satisfied that those few cases alone provide the jurisprudential basis to consider fully the issue of enforcing a foreign capacity orders in rem.

[19] In reviewing Morguard Investments Ltd. v. De Savoye, it appears that the SCC viewed positively the test for enforcement of foreign judgments in rem set out by the House of Lords in Indyka v. Indyka, [1969] 1 A.C. 33. That seems to involve considering principally whether there is a “real and substantial connection” between or among the parties, the issues, and the foreign jurisdiction.

[20] There is also UK case law referred to in Morguard that considers recognition of foreign judgment in rem where there is reciprocity, i.e., where each side would provide the same relief. The SCC refers to Travers v. Holley, [1953] 2 All E.R. 794 and Re Dulles' Settlement Trusts, [1951] 2 All E.R. 69 for example.

[21] It seems to me that I need submissions on a number of issues. Moreover, I am not sure that it is fair or appropriate to call on the applicants alone to make submissions on both sides. The Public Guardian and Trustee is a party already. I expect it will have helpful submissions. The issues in this proceeding may also interest the Office of the Children’s Lawyer.

[22] It may be that after reading this endorsement intervenors will come forward to offer help as friends of the court.

Questions for Further Submissions

[23] In reading the law submitted thus far, I have several questions:

1. Has Indyka been approved in Ontario for recognition applications under the Substitute Decisions Act, 1992? If so, in 2025, what does the law of Ontario require for proof of foreign capacity judgments in rem? Is proof of a “real and substantial connection” alone enough?
2. Or, even with a real and substantial connection, will or should the court here consider reciprocity in in rem cases involving incapacity? Ought the court here be looking at whether the outcome reached in England would be the same if the case had been brought here?
3. In Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, the SCC held that the criteria applicable to enforcement of foreign judgments will continue to emerge incrementally. Morguard dealt with enforcing a money judgment in personam. Pro Swing dealt with equitable relief consequent on a finding of contempt of court. Under para. 31 of Pro Swing, what are or ought to be the applicable criteria for recognition of foreign in rem capacity decisions?
4. If the substance of the foreign law and the facts on which the foreign order was based are not part of the test for jurisdiction, Morguard, Pro Swing, and the cases discussed at the hearing of the application suggest that the scope of the “public policy” part of the recognition test will also vary with the subject matter. In in personam cases seeking enforcement of foreign judgments for payment of a sum certain, there is almost no scope for refusing recognition based on public policy grounds. See: Boardwalk Regency Corp. v. Maalouf. Pro Swing did not deal expressly with the issue for equitable orders apart from recognizing that an issue exists. Considering the reciprocity point in Travers and Dulles and, more generally, the concerns in Ontario law and under the Charter of Rights and Freedoms for the respect for each person’s autonomy, (See: Starson v. Swayze, 2003 SCC 32, at para. 6) before enforcing the foreign judgment should the court always consider, as a matter of public policy, whether the foreign law and the foreign court decision accorded a fair degree of protection to the patient’s fundamental dignity, integrity, and autonomy?
5. If the answer to the prior question is “no,” ought the court guard against enforcement of particular orders concerning a person’s capacity from a jurisdiction in which very different conceptions of personal integrity and autonomy are shown or known to apply? What if, hypothetically, a foreign judgment declared a person to lack capacity because a close relative merely asserted a right under local law to control the affairs of another whom our law would view as having full capacity? Might it matter if the target was a person whom we would view as being vulnerable to subjugation due to an immutable factor such as race, sex, or sexual orientation etc.? Should we enforce such a judgment and, if not, on what basis would or could our law refuse to do so.
6. On a related note, what evidence would we need to determine if the foreign law is sufficiently similar to our law to pass muster? Who would be expected to bring the issues and the evidence forward? Does the PGT see itself as the guardian of everyone in foreign countries for whom guardianship rights are sought to be enforced here? Knowing its budgetary and resource constraints, I doubt it. If it is not the government’s role, who will act for the vulnerable people whose rights under Ontario law may be stripped by enforcement of a foreign order that could not be made here?
7. If there are no adequate answers and protections available, what is the harm of requiring all who seek to exercise guardianship authority over persons or property in Ontario to bring plenary applications under the Substitute Decisions Act, 1992 irrespective of foreign orders?

Additional Observations

[24] I wish to make a few matters clear. First, I heard evidence viva voce from Edward Danilunas. He is the brother of Marija Jurate Danilunas despite the slight difference in the spelling of their last names. Mr. Danilunas lives here. He supports the order sought and only wishes the best for his sister. He visited her in 2023 and saw that she was having trouble with her banking and investments. He believes that she could not continue to manage on her own. I accept and respect his evidence.

[25] I mean no disrespect to the courts of England in asking questions that are needed to develop a full understanding of the underlying principles.

[26] I do not have any concern applying the principle of comity for the courts of England. I do not know the relevant English law. But I am sure that the Deputies could explain it in a subsequent affidavit (or an expert affidavit if need be). England is the source of much of our law and I would expect to be readily satisfied in substance were I to go that route.

[27] But this is a case of first impression (or near first impression). The principles to be applied must withstand scrutiny not just for our closest allies but for others too. There may be jurisdictions whose legal systems are based on different conceptions of “life, liberty, and security of the person,” personal integrity, and autonomy. We regard these features as central organizing principles of our polity. Should this court enforce judgments in rem concerning capacity or incapacity on proof of a real and substantial connection alone without considering whether the foreign court applies a legal order that differs fundamentally from our own on issues of such central and fundamental importance to our definition of humanity?

[28] I invite counsel for the applicants to give thought to the structure of the proceeding going forward. They should consult the PGT and any other organization whom they may think would be helpful in making submissions, if any. They should then convene a case conference before me on notice to any such entities and to anyone who contacts them proactively so as to set a process to hear the remainder of this application.

[29] I invite the professional bar, and the Estates bar in particular, to consider whether it can be of assistance to the court and the parties in this endeavour.

Frederick L. Myers
Date: 2025-04-02